Bombay High Court
Bai Hirakore vs Trikamdas Hirachand on 1 November, 1907
Equivalent citations: (1908)10BOMLR23
JUDGMENT Chandavarkar, J.
1. It is contended in support of this appeal that Section 2 of the Partition Act, No. IV of 1893, applies only where a Court has to pass a decree in a suit for partition, but not where, after the Court has passed such a decree directing the partition to be effected in a particular mode, it is found that that mode is impracticable or inexpedient and one of the parties asks the Court to modify the decree by passing an order under this section.
2. In the first place, it is quite clear from certain provisions of the Act that the legislature intended the provisions to apply in both cases. The language of Section 2 is wide enough to cover them both.
3. That an order in execution directing a sale of the property in the manner pointed out in Section 2 falls within that section is clear from Section 8, which treats such an order as a decree within the meaning of Section 2 of the Code of Civil Procedure. That is. but for Section 8, such an order might not have been a decree in the strict sense of the term. It was not necessary to make it a decree by means of Section 8, if Section 2 was intended not to apply to but to exclude such orders. An order directing a sale in the manner prescribed in Section 2 is superfluous, if the decree passed in the suit has itself directed such a sale. It is only where the decree gives no such direction that the necessity can arise for an order for sale in execution under Section 2. Hence the Legislature provide by Section 8 that such an order must be treated as a decree. And that again is made more clear still by Section 7, Clause (b), which provides that, when any property is directed to be sold under this Act under a decree or order, the procedure to be followed shall be that prescribed by the rules of this Court, if any, and, until such rules are made, by the procedure prescribed in the Code of Civil Procedure in respect of sales in execution of decrees.
4. It is contended, however, that we should not adopt this construction, because it is opposed to the principle of law that a decree must be executed as it stands and its terms should not be varied. The answer to that is that, in a decree for partition, the right of each party to obtaina share by partition declared by the decree, is the primary thing; the mode in which that share is to be carved out and allotted is only subsidiary. If that mode becomes impracticable or inexpedient or detrimental to the interests of any party, the Court is given jurisdiction by the partition Act to adopt any of the modes perscribed therein.
5. The conclusion we have arrived at is supported by the authorities which have been cited by the learned pleader for the respondent. See Kadir Bacha Saheb v. Abdul Rahiman Saheb (1901) I.L.R.24 Mad,639; and Hiramani Dasi v. Radku Churn Kar (1899)5C.W. N. 128.
6. Then it is contended that as here there was an order under Section 396 of the Civil Procedure Code, the Court could not go behind it. The answer to that is that if the Partition Act applies, the proceedings taken already under Section 396 are no bar to the application. We must for these reasons confirm the decree with costs.